1613499 (Refugee)

[2017] AATA 2723

1613499 (Refugee) [2017] AATA 2723 (19 September 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613499

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE OF DECISION:  19 September 2017

DATE CORRIGENDUM

SIGNED:19 December 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In error: Paragraph 48 (second dot point, second sentence) of the Decision Record

Overall, however, she has had [….sentence incomplete]

Should read:

Overall, however, she has had a full, satisfying private, social and working life in Malaysia. She has not experienced harm that, individually or cumulatively, amounts to serious harm or significant harm. Nor has she had to modify her conduct or appearance in a way that might itself involve persecution or significant harm.

James Silva
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613499

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:19 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2017 at 11:01am

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Lesbian – No evidence of significant harm as a result of sexuality – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a woman in her [age] from Malaysia.

2. The applicant arrived in Australia [in] September 2014, as the holder of a [temporary] visa. She applied for a Protection (Class XA) visa [in] August 2015. [In] July 2016, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 2 August 2017.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to be a lesbian who has a masculine appearance (she used the term ‘cross-dressing’). She claims to have experienced disapproval and discrimination from her family, the community in general and Malaysian authorities. She fears continued disapproval and discrimination if she returns to Malaysia. In particular, she fears that Malaysia’s anti-LGBT laws, with political and religious backing, and declining social acceptance, put her at risk of persecution or significant harm if she returns to Malaysia. 

   Background

8. The applicant is a [age] woman, born in Kuala Terengganu, Terengganu. She is of Malay ethnicity, and a (nominal) Muslim. She speaks Malay and English.

9. The applicant attended school in Port Klang (Klang), Selangor, from [year] to [year]. She worked in various positions [in] Klang (August 2001 to June 2003), and as an [occupation] in [a workplace] in Klang (Selangor) (September 2003 to September 2008). Later, the applicant worked in Kuala Lumpur, about a half hour by bicycle from Klang. She sometimes stayed overnight with friends there. Most recently, the applicant worked as an [occupation] in a [certain] company (which she described as an NGO) in Kuala Lumpur, until she came to Australia in August 2014.

10. The applicant gave no details of family members in her protection visa application. She later advised that she is the [placement] of [number] children. Her [mother] lives in the family home. The applicant claimed to have no contact with her siblings, stating that the older ones in particular do not accept her sexuality. The applicant told the Tribunal that her siblings are in Malaysia, except for a [sibling] living in [Australia]. She added that this sister, is also a lesbian, but they no longer have contact with each other: ‘I don’t accept [this sibling] as my relative’.   

11. The applicant holds a Malaysian passport, issued [in] 2014. She indicated on her protection visa application that she had not held any previous travel document, but corrected this at the Tribunal hearing, saying that she held a previous passport that has since expired. She undertook prior travel abroad, mainly for [certain] events ([countries] in 2007), and for holidays ([Town 1] in 2011, described as a ‘company trip’, [Country 1] in 2012, and [Town 1] in 2013).

12. The applicant arrived in Australia [in] September 2014. As noted above, the applicant lodged her protection visa application [in] August 2015. The applicant first submitted a protection visa application form [in] August 2015, but this was found to be an invalid application because she failed to pay the application fee.

    Evidence

13. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s first protection visa application form, lodged [in] August 2015. As noted above, the Department found that this application was invalid as the applicant did not accompany it with the prescribed fee.

    §  The applicant’s current (valid) protection visa application, lodged [in] September 2015. The applicant provided handwritten reasons for claiming protection (they are near-identical on both the first and the current application forms).

    §  As identity documents, copies of the applicant’s Malaysian passport (biodata page), and her Malaysian driver’s licence (issued in [2014]).

    §  Country information:

    -   The Department file includes copies of three articles: (a) a copy of an article from November 2015, in which the Malaysian Deputy Prime Minister is reported as favouring increased funds to combat IS, liberalism and homosexuality ; (b) an article on an acid attack against two women (described as ‘good friends’, although it appears to concern an anti-lesbian hate crime; and (c) an online discussion about an acid attack in August 2015. The applicant had emailed links of these articles to the delegate after her interview.

    §  The applicant attended a protection visa interview (‘Department interview’) [in] July 2016, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] July 2016.

    §  The review application, lodged on 24 August 2016, has no further information or claims attached to it.

    §  The Tribunal received further country information before the hearing:

    -   An article in Malay, with an English language abstract, entitled: ‘Lesbian, Gay, Bisexual and Transgender: A Syariah Criminal Law Perspective’. The applicant highlighted a section on lesbians, which notes that they may be subject to a fine of RM 5,000, or up to three years imprisonment, or six strokes of the cane.

    -   Other articles on Muslim clerics’ attitudes to transgenders, and a Wikipedia article on LGBT rights in Malaysia.

    §  The applicant brought to the hearing further articles, which she later forwarded by email. These included the following:

    -   A summary from the Human Dignity Trust[1] on the criminalisation of homosexuality in Malaysia, which notes that ‘the law is equally applicable to both men and women,’ and several articles reporting on the government’s refusal to protect LGBT rights (one of which is based on an interview with the Malaysian Prime Minister Najib Razak).

    -   An article from the (Australian) Star Observer of September 5, 2014, reporting on the arrest on lesbians in Johor Bahru.

    -   An article from November 11, 2011, on plans in two states, Pahang and Malacca, to change their Islamic laws. The result was that, in addition to federal laws punishing homosexual acts (which provide for caning and up to twenty years imprisonment), state religious laws would impose additional punishment for Muslims.

    §  The applicant emailed to the Tribunal after the hearing a number of photographs of her, taken in Malaysia and Australia, showing her in multiple settings, confidently wearing masculine clothes.

    [1] The Human Dignity Trust, Criminalisation of Homosexuality, updated 25 October 2015.

14. The applicant appeared before the Tribunal on 2 August 2017, to give evidence and present arguments. The hearing was conducted via video conference between the AAT’s [premises] and a conference facility in [Town 2], with the assistance of an interpreter in the Malay and English languages. The applicant is not represented in this matter.

15. The applicant presented two witnesses, [Ms A], whom she described as her girlfriend, and her ‘friend’, [Mr A]. A Tribunal member observed the hearing, with the applicant’s prior agreement.

16. The applicant brought to the hearing, among other things, her Malaysian national ID card, which she showed the Tribunal. As noted above, she brought additional country information and articles, which addressed anti-LGBT criminal provisions and statements from politicians. An article from the Australian online Star Observer concerns the Malaysian religious police arresting two women in a hotel room in Johor Bahru.

17. The Tribunal drew in the discussion on a range of country information, including the Department of Foreign Affairs and Trade’s Malaysia Country Report, July 2016, and other sources referred to in the body of this decision.

    Receiving country

18. The applicant claims that she is a Malaysian national. She speaks Malay; she has provided a Malaysian passport and a copy of her driver’s licence; and she is familiar with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing her claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

19. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

20. The applicant gave a generally consistent, unembellished account of her experiences and concerns in Malaysia. The Tribunal accepts as credible the majority of her claims and evidence relating to Malaysia. Its detailed assessment follows below.

21. By way of contrast, the Tribunal found the applicant’s account of her experiences in Australia to be generally unreliable. It considers that she did herself few favours, and potentially undermined her application as a whole, by giving evasive and untruthful evidence about her movements and activities in Australia. The Tribunal also has a number of concerns about the evidence from [Ms A] and [Mr A], the applicant’s witnesses. [Ms A] presented as the applicant’s girlfriend in [Town 2]. The applicant and [Mr A] stated that he met the applicant’s [relative] through a mutual friend in [Country 2]; that the applicant often stays at his home in [Town 2]; and that she does not receive money, but she performs some domestic and gardening chores. According to the applicant’s evidence, she also looks after the home of another friend in [Town 2].

22. The Tribunal considers that the applicant and her witnesses were less than frank about her circumstances in [Town 2] (including the nature of her relationship with them, her living arrangements and her income), and it is concerned that their evidence was skewed by personal or financial considerations (such as the applicant’s undeclared work, and/or by [Ms A’s] own migration status). It therefore places minimal weight on their evidence as independent corroboration of the applicant’s claims and her circumstances in Australia.

    The applicant’s sexual orientation

23. The applicant has consistently stated that she identifies as a lesbian, and has an exclusive interest in women. She has also claimed to ‘cross dress’, as she wears men’s clothes, and has the physical appearance (such as short hair) and mannerisms that might be regarded as masculine. At the hearing, she commented that, while working at [the workplace], she did not dress sexy or effeminate, but rather ‘sharp and smart’.

24. The applicant provided further details about her sexuality and her experiences in Malaysia.

    §  She said that she was never interested in men, and came to realise that she was lesbian around the age of [age]. She explained that she had preferred to play with boys, but she was sexually attracted only to ‘pretty women’.

    §  She stated that she first told her father about her sexuality. He was disappointed, but later came to terms with this reality. Later, she told her mother as well. Her parents eventually accepted it. From a young age, her parents let her buy and wear boys’ clothes. Her siblings also know about it, but they generally disapprove.

    §  The applicant stated that she has always preferred masculine clothing. She showed the Tribunal, among other things, a photograph of her in a nightclub in Malaysia, wearing masculine clothing and standing together with her then girlfriend. A post-hearing submission contains numerous photographs of the applicant wearing similar attire, in Malaysia and Australia.

25. Before the Tribunal, the applicant spoke about her sexuality and experiences in Malaysia in a detailed, natural manner. The Tribunal accepts that she is a lesbian, and that she presents in a masculine manner, for which she uses the term ‘cross-dressing’.

    The applicant’s (negative) experiences in Malaysia

26. The applicant indicated in her protection visa application that she did not suffer harm in Malaysia. However, she went to explain that she left Malaysia because society at large and the religious authorities were putting her under pressure, as a lesbian and a ‘cross-dresser’.

27. At the Department interview and the Tribunal hearing, the applicant gave some further details of the difficulties that she experienced in Malaysia, as a lesbian and ‘cross-dresser’.

    §  She said that her parents were initially upset about her sexuality, but eventually came to accept it.

    §  The applicant told the delegate that her siblings do not like her sexuality; at the hearing she said that they do not accept her. For instance, she said that all her sisters have long hair and all wear the hijab. However, the applicant added that she is not too bothered by what they think. During the course of the hearing, the applicant revealed that one of her sisters is in fact in Australia, and is also a lesbian. Asked about that sister’s attitudes – given the applicant’s earlier evidence that none of her siblings accept her as a lesbian – she replied curtly that they no longer talk, and she does not regard her as a relative any more.

    §  The applicant said that, growing up and at school, she liked spending time with her male friends, some of whom were gay. She said that her male gay friends generally had to keep a low profile.

    §  The applicant claimed that she sometimes experienced unsavoury comments or ridicule in public.

    §  The applicant indicated that her various jobs involved customer contact, although this was often by telephone or online. Some of her colleagues used to make verbal barbs.

    -   At hearing, she said that in her first job, she was an [occupation], and some fellow workers used to talk behind her back.

    -   At [the workplace], she did not have any problems initially, but some staff members started to verbally abuse and bully her, in particular because of her masculine clothing. Over time, her supervisors put pressure on her to dress in a feminine way. She said that this ‘torture’ made her feel stressed. On her mother’s advice, the applicant decided to leave [employment].

    -   The applicant said that she even experienced some negativity when working in her friend’s [company].

    -   The Tribunal noted that the applicant had found employment in various sectors, suggesting that her appearance, conduct and (presumed) sexuality had not been a major issue. Although she had experienced some teasing, this did not appear to be have been significant, and ultimately she left each position of her own accord. The applicant explained that ability to obtain and hold such positions did not necessarily indicate acceptance of her sexuality. For instance, in relation to her work at the [workplace], she explained that her mother had previously worked there, and knew people. Also, she was a skilled [worker], and the [employer] employed her without an interview because they had been looking to bolster the [team].

    §  The applicant said that, while later working for her friend in Kuala Lumpur, the police once stopped her at a checkpoint where they were conducting random urine tests (which they conducted only on men). On checking her license and ID card, they realised that she was a Muslim woman, and signalled their displeasure that she was not dressing appropriately. Although feeling annoyed, the applicant said that she knew that she simply had to bite her tongue.

    §  The applicant had a similar experience when going through security checks at airports. She recalled that on one occasion – during a trip [overseas]– the security official had asked her whether she wanted a male or female officer to pat her down. He asked her to please act like a woman, not a man. As related by the applicant, the official spoke in a patronising or unfriendly, but not outright hostile, manner.

    §  The applicant said that she has a wide network of friends in Malaysia (and also Australia), in part because society at large does not accept LGBT people. They also have to exercise caution. For instance, when she was in a relationship, she had to avoid holding hands with or kissing her girlfriend, as this could attract scorn and insults. At hearing, she recalled one occasion when she had been in a mixed nightclub with a girlfriend, and one of the male patrons bumped her on the shoulder. The applicant believed it was deliberate, and that the man was ready to punch her. The applicant felt this was a provocation because of her appearance, but she apologised to the man to defuse the situation. As for LGBT nightclubs, the applicant said that she does not go there because of the risk of raids by the religious police.

    §  At hearing, the applicant said that she always had to exercise care not to antagonise people. She confirmed her written claim that she had suffered mentally, due to ongoing pressure, but stated that this had never resulted in any actual medical issues.

28. The applicant has given a reasonably consistent, detailed and unembellished account of the problems that she experienced in Malaysia, as a lesbian and ‘tomboy’.

29. The Tribunal accepts that she has experienced some degree of discrimination from family members, the general community and Malaysian officials. It finds that these were generally limited to expressions (verbal and non-verbal) of disapproval, some unfriendly comments and, perhaps underlying these, some patronising or prejudiced attitudes. It accepts that this caused some stress and was demoralising. However, the Tribunal is not satisfied that these involved, individually or cumulatively, any harm led the applicant to fear for her safety; or psychological, physical or other harm that amounted to persecution or ‘significant harm’.

30. The Tribunal acknowledges that the applicant exercised some caution in Malaysia. For instances, it accepts that she had to avoid public displays of affection with girlfriends. It also accepts that she had to refrain from responding to or arguing with officials others who made unwelcome enquiries, or who made insensitive comments or suggestions. Similarly, the applicant may also have avoided visiting known gay clubs in Kuala Lumpur, knowing that they can be subject to police raids.

31. However, to put these constraints in context, country information indicates that Malaysian society is generally conservative, where all people are expected to engage in fairly modest behaviour and defer to officials. The Tribunal accepts that the applicant laments that Kuala Lumpur does not have a larger LGBT social scene, with a liberal, relaxed atmosphere; that the limited number of dedicated gay bars are subject to scrutiny and occasional police raids; and that there are no lesbian venues of note. The Tribunal is not satisfied that any of these instances involved the applicant having to conceal her sexual  orientation (or her self-identification as a tomboy), in order to avoid serious harm amounting to persecution, or

1. On the contrary, the Tribunal finds that the applicant lived openly as a lesbian, and that she did not modify her conduct in any significant way, in order to avoid persecution or significant harm (or even to avoid social disapproval). For instance, she did not have to deny her sexuality, adjust her clothing or conduct to meet social norms, or otherwise compromise her daily life. It appears that she had generally good relations with family; that she found and was able to maintain employment; and that she mixed with a network of friends – lesbian, other LGBT and straight – most of whom accepted her sexuality and her appearance, and shared her liberal outlook.

2. The Tribunal’s assessment of the applicant’s circumstances generally accords with a range of country information, which it discussed at the hearing. For instance, the Department of Foreign Affairs and Trade (Tribunal emphasis added; see full excerpt at Attachment B) wrote in July 2016[2]:

   DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.

   [2] DFAT, Malaysia Country Report (July 2016), pp. 20-21.

3. The Tribunal accepts that the applicant’s Muslim identity may have exposed her to some scrutiny and unwelcome comment (for instance, from officials or neighbours), and that she may have been readily recognised as, or assumed to be lesbian. However, there were many factors that explain why she was not subject to more serious or sustained discrimination, including: - her residency in Kuala Lumpur and Klang, which are large, cosmopolitan centres; her family’s [connections]; her network of social [friends]; and her more recent employment in [a certain] sector.

4. The applicant also gave examples of some of her friends’ experiences which, while not directly involving her, arguably gave her a sense of insecurity, especially about the future.

   §  She claimed that some four or five years ago, two lesbian friends who shared an apartment, were targeted by the religious police. They came to their home, gave them a stern warning and fined them RM 1,000[3]. The applicant said that the couple eventually had to move home. Although the applicant did not have further details, it appears that the couple had upset their neighbours, who were then able to put pressure on them (including through calling the religious police).

   §  The applicant also mentioned an incident involved a transgender friend of hers [Mr B], also known as [name]. [Ms A] also mentioned [Mr B], as a friend in Sabah. Although the applicant did not provide further details at hearing, she told the delegate that about [some] years ago, a good friend who was a transwoman died when she leapt from the second floor of a building, trying to escape an Islamic Department raid.

   [3] About $A 295 at current exchange rates.

5. In relation to these incidents, the Tribunal notes that the applicant was recalling an event some years ago, and in the latter instance, a transgender woman (who are significantly more at risk than lesbians, gay men or other members of the LGBTI community). In any event, the Tribunal is not satisfied that any of these incidents, individually or cumulatively, instilled such fear in the applicant that she decided to leave Malaysia in September 2014 or convinced her of the need for protection abroad.

6. The applicant stated at the hearing that she is active on social [media]. She said that she was aware of some support groups, but had not joined them. Similarly, she did not signal any interest in political or advocacy issues. She commented in passing that it is not safe to speak out publicly, as she is ‘still a Malaysian’. The Tribunal formed the view that, while the applicant is conscious that Malaysians who are advocates for LGBT rights may face pressure or restrictions, she does not personally have a political conviction or drive that motivates her to engage in the political sphere.

7. The applicant presented a range of county information, in particular focused on Sharia law and its application to Muslims in Malaysia. For the main part, this focuses on ‘potential’ penalties of imprisonment, fines or whipping, but there is minimal information about the enforcement of these laws against individual lesbians.

8. The Tribunal is not satisfied that any of these constraints had much practical impact on the applicant. Similarly, the applicant claimed that she did not visit gay venues (such as the small number of Kuala Lumpur bars or nightclubs), for fear of police raids. The Tribunal considers that the applicant had a full social life in Kuala Lumpur. Although she may not have been able to frequent exclusively lesbian or LGBTI venues, or even unambiguously LGBT-friendly venues, the Tribunal is not satisfied that Malaysia’s limited LGBTI scene has much impact on her, given that she had a full social life and has not shown interest in such facilities in Australia.

9. The Tribunal finds that the applicant found broad, if not universal, acceptance of her sexuality, her appearance and her conduct (as a lesbian and as a tomboy), among her parents; most of her school [and] work colleagues; and a wide circle of friends that included lesbians, other LGBT people, and other young people who were open-minded. It is not satisfied that any of the problems she faced – such as the disapproval from some individuals; the lack of dedicated or safe lesbian (or LGBT-friendly)  venues in Malaysia; her refraining from over displays of affection to other women; or her restraint in not responding to insensitive criticism – had a significant impact on her, even cumulatively. It is also not satisfied that the broader anti-LGBTI sentiment in Malaysia – manifested through national laws, religious laws, or official and social attitudes, and instances of anti-LGBTI violence (in particular against transgender women) – resulted in her suffering psychologically or in other ways, such as to suffer serious or significant harm.

   Departure from Malaysia

10. The applicant wrote in her protection visa application that she left Malaysia because society in general, and the religious authorities in particular, put pressure on her ‘as a gay person and [a] crossdress[er].’ At hearing, she said that she departed Malaysia in September 2014, simply planning to holiday in Australia. She had already found information online, from Google and Wikipedia, for instance, that Australia was accepting towards LGBT people. This, together with the applicant’s delay in seeking protection in Australia after her arrival, leads the Tribunal to conclude that she left Malaysia for several reasons – such as to work, and to experience a society with more liberal atmosphere – but not in response to a present fear of serious or significant harm.

    Incident after her departure from Malaysia

11. The applicant highlighted one incident that had occurred following her departure that increased her fear of returning to Malaysia.

    §  The applicant claimed that two lesbian friends of hers, a couple in their [age], were subject to an acid attack near their apartment in [a] District, Selangor State. She presented two articles to the Department, one from The Star and one from Reddit.

    -   The first article describes the two as ‘good friends’ who had moved into a condominium together. They were looking for a parking spot in their complex, when an unknown person on a motorcycle came by and sprayed them with acid.

    -   The Reddit blog states that the two were ‘a happy couple’, and are suspected of being the victims of a hate crime. One of the comments states that ‘a bunch of people on [social media page] [an LGBTI rights group in Kuala Lumpur that organises an annual program of events to bring various activists, support groups and artists] has vouched for [the victims].’  

    -   At hearing, the applicant was not familiar with these women’s occupations (which were stated in the articles), and said that she did not know them ‘well’. She thought that the case (ie. investigations) were ongoing, but did not appear sure.

    -   The Tribunal accepts that the attack involved a lesbian couple. The reports do not give much background about the case, such as the identity of the attackers and/or their possible motives (although it is a suspected hate crime). The Tribunal has not found other evidence to suggest a pattern of attacks against lesbian couples (or other LGBTI couples) of this nature.

    -   The Tribunal does not accept that the applicant knows the couple, or is directly affected by the attack. Nonetheless, it accepts that the reports have led her, and the LGBT community more generally, to fear that it was a hate crime linked to rising anti-LGBT sentiment.

    The applicant’s activities in Australia

12. As noted above, the applicant told the Tribunal that she came to Australia for a holiday, of just [number of] days, and had initially planned to return. She did not respond to the Tribunal’s interest in seeing an electronic or other record of her return ticket.

    §  Taken at face value, the applicant’s account reinforces the impression that she did not leave Malaysia in response to any anti-LGBT pressure or fear of imminent harm. Rather, it suggests that her main goal was to have a brief holiday, and/or to explore her options for working and staying in Australia in the longer term.

    §  However, the Tribunal considers the applicant’s account of her travel to Australia and her intentions to be unreliable. It is unclear whether she did in fact have a return ticket for a [return] trip, and even if she did, whether she genuinely intended to return to Malaysia at the conclusion of that brief stay. In any event, her activities on arrival in Australia – discussed immediately below – reinforce the Tribunal’s view that she did not leave Malaysia to flee persecution or significant harm, or the cumulative effect of anti-LGBT sentiment in Malaysia.

13. The applicant claimed that, on arriving in [Australia] she went to an [accommodation]. She met some [backpackers] there, and decided to join them on a [trip] (in effect, jettisoning her planned return to Malaysia). She followed her [friends] to [Town 3], and decided to stay there. The applicant said that she stayed in a [place], and lived off the funds that she had brought from Malaysia (about $[amount]). She said that she did not stay in [city], as it was large and she knew no one there. By way of contrast, she found [Town 3] inexpensive, and she enjoyed meeting new people and fishing. Around mid-2015, she went to live in [Town 2], to stay with a friend of her [relatives’] (a reference to [Mr A]).

14. The applicant stressed in her evidence that she did not work in [Town 3] or [Town 2], as she did not have permission to work. As for her ongoing expenses, she said that her mother had sent some money via friends in late 2014.

15. The Tribunal found the applicant’s account of her activities after her arrival in Australia to be lacking in credibility. First, it does not believe that she came to Australia, planning to stay for only a [number of] days; that she met some [backpackers]; that she travelled with them to [Town 3], and later went with her [sibling] to [another State] only with the intention of living cheaply. Second, the Tribunal does not accept that the funds that the applicant brought with her, or those sent by her mother, or any in-kind assistance that [Mr A] or others have allegedly given her, were sufficient to meet her expenses in Australia. The Tribunal finds that the applicant came to Australia mainly to work and earn money (and to enjoy a more progressive, liberal society), and that she has given false information about her activities because she has no permission to work, and because this could undermine her claims for protection.

16. The Tribunal considers that the applicant’s untruthful evidence about her activities in Australia raises broader questions about her credibility, and that of her witnesses. Moreover, it suggests that she has given priority to work in rural locations, rather than exploring options to make contact with LGBT people in Australia, or to live in an environment where LGBT people are more visible and accepted. The Tribunal acknowledges that the applicant appears to have a network of friends (including Malaysians in Australia), at least some of whom are lesbian or LGBT, and that she claims to be in a lesbian relationship with [Ms A]. This suggests that she might not have an immediate need for the support or company of LGBT groups, or to visit LGBTI venues in Australian cities. The Tribunal recognises, too, that there is great diversity in where LGBT people may choose to live and how they socialise. Nonetheless, the applicant’s activities and priorities in Australia do not seem to differ markedly from her lifestyle in Malaysia. This casts doubt on her claims that Malaysia’s social and legal constraints on LGBT activities had a significant impact on her ability to express her sexuality and live openly, and reinforces the Tribunal’s views that she did not suffer serious hardship in Malaysia. 

    Summary of findings

17. The Tribunal makes the following findings of fact:

    §  The applicant is a lesbian who identifies as a ‘cross-dresser’ or tomboy, in regards to her clothing, appearance and social behaviour. The applicant is generally open about her sexuality, and in Klang and Kuala Lumpur, many people presume that she is lesbian by her appearance. It is unnecessary for the Tribunal to determine whether the applicant is currently in a relationship, but given the extent of its concerns about her and [Ms A’s] credibility, it is not prepared to accept at face value that they are a couple.

    §  The applicant has experienced some discrimination from family, the broader community and Malaysian officials. This has included indications of disapproval, some social rejection and some pressure to conform to conservative values. The applicant has, in response, acted with some caution and experienced some frustration. Overall, however, she has had

    §  The applicant did not flee persecution or significant harm in Malaysia. She came to Australia mainly to work, and also because she had heard that it is a more tolerant society.

    §  The applicant applied for protection after hearing from [friends] in [Town 3] that there was an opportunity for lesbians to obtain protection in Australia, and hence permanent residence.

    §  The Tribunal accepts that the applicant has been worried about reports of anti-LGBT policies and statements in Malaysia, and instances of anti-LGBT violence. It appreciates that she is apprehensive about future developments - the potential application of Sharia law against her as a Muslim and a lesbian, and the rising anti-LGBT mood and rhetoric.   

    ASSESSMENT: REFUGEE CRITERION

18. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to other relevant factors – in particular, country information about the treatment of lesbians and other LGBT individuals in Malaysia, as well as the applicant’s future conduct – there is a real chance of her experiencing serious harm amounting to persecution if she returns to Malaysia (for reason of her member of the particular social group of lesbians in Malaysia, as a ‘tomboy’, or for any similar reason enumerated in s.5Jj(1)).

19. In the present case, the Tribunal accepts that the applicant is Muslim, and that some officials and others (such as her supervisors at the [workplace]) have taken this as licence to make unwelcome remarks about her appearance (and, by implication, her lifestyle or sexuality). Relevantly, however, they have not taken it beyond this. The applicant has lived and worked in Klang and Kuala Lumpur, large urban centres. She has held various positions in the [workplaces], including with customer contact. And she appears to have had a good social life through sporting and LGBT circles. There is no persuasive evidence that the applicant had to conceal her sexuality or modify her appearance or conduct to avoid the consequences of being identified as a lesbian (or a tomboy). On the contrary, the available material suggests that the applicant has conducted herself in a confident, uncompromising manner.

20. All of the above - when taken together with the applicant’s own evidence that she initially came to Australia only for a holiday, and that she did not seek protection until almost a year later, when a friend told her this could be a pathway to permanent residence – strongly suggests that the applicant does not have a genuine fear of persecution based on her past experiences in Malaysia.

21. The applicant claims that she nonetheless fears persecution in the reasonably foreseeable future in light of reports that officials are using anti-LGBTI rhetoric, that there are national and religious laws targeting these groups, there are instances of anti-LGBT violence, and that social acceptance is declining.

22. The Tribunal has carefully considered country information concerning official and social attitudes to lesbians (and other LGBT groups), and in particular information relating to lesbians who are regarded as pengkid (‘tomboys’ or ‘masculine women’). The country information that the applicant provided documents a wide range of anti-LGBTI actions at an official and societal level. These include anti-LGBTI laws, at the national and State level, instances of discriminatory regulations and announcements, and examples of anti-LGBTI violence. The examples involve various parts of the country and, predominantly focus on transgender women who, according to country information, face the highest risk of all LGBTI groups.

23. In relation to lesbians, and in particular pengkid, the Tribunal has considered a range of country information, including a May 2014 report by the International Gay and Lesbian Human Rights Commission[4]. This records pengkid as facing verbal abuse or warnings from strangers in public places, inappropriate physical contact, and job discrimination. The Tribunal finds this broadly consistent with the kind of official and social pressure that the applicant has experienced although, for the reasons stated above, the Tribunal does not accept that it involved serious harm amounting to persecution, or that it motivated the applicant to leave Malaysia. In relation to religious laws directed against Muslims, it goes on to state: 

    In October 2008, the National Fatwa Council announced a fatwa (Islamic edict or opinion) against pengkid, a term that loosely translates as tomboys for individuals in the Malay Muslim community who fall within the spectrum of lesbian butch and transman […]. The announcement of the fatwa against tomboys sparked protests from people, notably non-Malay Muslims. Many Malay Muslim conservatives, such as members of the National Fatwa Council, nationalist pressure groups, politicians, bloggers, and some members of the public, saw these protests of non-Muslims against the pengkid fatwa as interference in an Islamic matter. Presently, fatwas have been gazetted (officially announced to the public and published in a journal or state controlled newspaper) in the state of Malacca and the federal capital, Kuala Lumpur, to prohibit tomboy or tomboy behaviour. 

    [4] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May,

1. While the Tribunal appreciates that this creates pressure on LGBTI individuals, including lesbians (and pengkid), there is minimal evidence to suggest that there is any enforcement of such laws against Muslim lesbians, at least in Kuala Lumpur. The Tribunal has found only one unambiguous case of a punishment being levied, namely a fine of RMB 1,000[5]. The available information suggests that the situation for lesbians (and pengkid) in Malaysia is generally much more favourable than for transgender women or gay men, and in the Tribunal’s view, the applicant’s own experiences in Malaysia and her conduct reinforces this. The applicant provided a copy of an article from the Star Observer in September 2014 about the arrest of two women in Johor Bahru[6], which flagged that the women could face imprisonment or whipping. However, this is some 300 km south of Kuala Lumpur. While the article refers to potential penalties of three years imprisonment, a fine and six lashes, there is no further information to suggest that this was imposed in this or similar cases.

   [5] About $ 3,000 at current exchange rates.

   [6] Benjamin Riley, Star Observer, Two Women Arrested in Malaysia Face Jail, Lashing Under Anti-Gay Laws, September 5, 2014.

2. Again, the Tribunal appreciates the significance of such penalties, even if they are not enforced; and it recognises the concern that their mere existence causes for LGBTI individuals, and their families and friends. It recognises that the broad anti-LGBTI sentiment that prevails in official circles in Malaysia, and in some communities. It also takes into account that the overall conditions for LGBTI people is said to be deteriorating. However, in the applicant’s particular circumstances, the Tribunal is not satisfied that these laws, the underlying official or societal attitudes, or the (in its view, remote) risk of their enforcement add up to a real chance of the applicant being subject to serious harm amounting to persecution. Given the applicant’s circumstances, including a wide network of friends, family and sporting contacts who accept her sexuality and appearance; a good employment history in Malaysia; and her residency in the Kuala Lumpur/Klang area, the Tribunal finds that there is no real chance of her experiencing anti-LGBT violence, psychological harm or other serious harm amounting to persecution, in the reasonably foreseeable future.

3. The Tribunal notes that the applicant has generally been open about her sexuality, and steadfast in her preference for masculine attire and conduct. It is not satisfied that she will have to conceal her sexuality, or modify her clothing or behaviour, or otherwise modify her conduct, in order to avoid the risk of serious harm amounting to persecution.

4. The Tribunal recognises that there is implicit in the applicant’s claims a criticism of Malaysian society, politics and religious values, insofar as these put pressure on her to conform. The Tribunal explored these matters with the applicant briefly at the hearing. It considers that her claims focus on her sexuality and personal freedom, and that she does not have a political opinion that she has, or would wish to act, upon. It follows that the applicant would therefore not have to conceal or avoiding acting on any political opinion, in order to avoid persecutory harm.

5. The Tribunal has considered the applicant’s claims individually and cumulatively. It is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if she returns to Malaysia.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

7. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

8. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about the treatment of LGBTI individuals (especially lesbians and pengkid) in Malaysia. It is mindful of the psychological and long-term impacts of social discrimination, and the mere presence of anti-LGBTI laws and attitudes. Nonetheless, it concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of their life or the death penalty. In other words, the Tribunal finds no other grounds that suggest she will be subject to significant harm, for any reason, if she returns to Malaysia.    

9. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm: s.36(2)(aa).

   CONCLUSION

10. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

11. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a protection visa.

    James Silva
    Member

    
    

    ATTACHMENT A - CRITERIA FOR A PROTECTION VISA

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    ATTACHMENT B – DFAT REPORT (EXCERPT)

    Sexual Orientation and Gender Identity

    3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).

    3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.

    3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.

    3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.

    3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.

    3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment. 

    Transgender Individuals

    3.95 Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.

    3.96 Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.

    3.97 In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-level prohibition on men dressing as women to be unconstitutional. The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In 2011, a transgender woman was arrested for cross-dressing and was sexually assaulted by religious department officials in Negeri Sembilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card—was not arrested. However, her Muslim transgender friends were arrested for cross-dressing.

    3.98 State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.

    3.99 DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence.